Citation Nr: 1137752
Decision Date: 10/07/11 Archive Date: 10/11/11
DOCKET NO. 08-31 995 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California
THE ISSUE
Entitlement to service connection for a low back disorder, to include as secondary to a service-connected right hip disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
J. T. Sprague, Associate Counsel
INTRODUCTION
The Veteran had active service in the United States Air Force from March 1971 to January 1979, and from November 2001 to September 2002.
This matter comes before the Board of Veterans' Appeals (Board) from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California.
The Veteran appeared at a Travel Board hearing in May 2011. A transcript is of record.
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.
REMAND
The Veteran in this case suffered a very traumatic fall while on active duty. Indeed, service treatment records indicate that in December 1971, the Veteran fell over 100 feet from a cliff while hiking, and that he required hospitalization for many weeks following the accident. The Veteran contends, in essence, that this injury caused him to develop a chronic low back disability or, alternatively, that a service-connected right hip disability (noted as right hip/sacroiliac arthritis with a pubic bone deformity) caused or aggravated his low back disability beyond the natural progress of the disease process.
The Veteran has had complaints of low back pain in recent years, and a 2005 magnetic resonance imaging (MRI) study did show that there was multilevel discogenic and degenerative disease with associated neural foraminal and spinal cord narrowing. The L4-5 and L5-S1 levels were the most affected.
There are two VA examinations of record which purport to address the Veteran's low back disorder and a potential nexus to service. The earliest of these, dated in April 2006, confirmed the presence of discogenic disease. With respect to etiology, the examiner noted that he had not reviewed the Veteran's records, and that he had no idea about the progression of the disease over the last forty years. That is, the examiner was unable to come to a conclusion on the matter of causation. Accordingly, the opinion is not particularly useful, and the RO noted this in its decision to obtain another VA examination. In August 2007, a comprehensive VA examination was returned which addressed the Veteran's low back condition as well as several other anatomical areas. Unfortunately, it does not appear as though a very useful opinion was returned by this examiner either.
Specifically, although this examiner reviewed the claims file and mentioned the Veteran's in-service history of a fall (in addition to complaints of back pain in 1975 and 1978), her opinion on etiology is rather vague, with very little rationale, and it does not address the potential aggravating relationship between the current low back disorder and the service-connected right hip disability. Indeed, this examiner stated that there was no evidence of disc disease in service, and that more likely, the Veteran's condition developed as a result of "age[-]related changes." The examiner then stated, "I do not have sufficient evidence to state with certainty that the [de]generative disc disease started while in the service." For one, the examiner did not identify what additional information was needed so that she could make a determination on a nexus to service, and secondly, the evidentiary standard in service connection claims is that of equipoise (i.e., at least as likely as not). Thus, the inability of the examiner to say "with certainty" that the degenerative changes are related to service, in this legal context, is not relevant. See 38 C.F.R. § 3.303. The examiner then went on to state that the Veteran's intervertebral disc syndrome "is not likely related" to the right hip arthritis and pubic bone fracture. She did not mention a potential aggravating relationship at all, and her statement on a potential secondary causal nexus is not supported by any medical rationale.
A medical opinion will be considered probative if it includes clear conclusions and supporting data with a reasoned analysis connecting the data and conclusions. A medical opinion that is factually accurate, fully articulated, and based on sound reasoning carries significant weight. See Nieves-Rodriguez, 22 Vet. App. at 304. In this case, both the 2006 and 2007 medical opinions do not contain rationales to support their conclusions, and do not address all the potential etiologies raised with the appeal. Accordingly, a new examination, by a new examiner, is needed. See McLendon v. Nicholson, 20 Vet. App. 79 (2006).
In addition, since the last VA examination of record, the Veteran has submitted statements dated in April and May 2011 from a physician who appears to support his claim. Specifically, a "physician's questionnaire," dated in May 2011, posited to a private doctor by the Veteran's representative, contains an answer of "yes" to the question "is it a[t] least as likely as not that [the Veteran's] chronic lumbar sprain could be a result of the fall that occurred during military service?" There is no rationale associated with the opinion. Nonetheless, it is a positive opinion for the Veteran, and should be discussed in the context of a new VA examination addressing etiology.
Accordingly, the case is REMANDED for the following action:
1. Ensure that all notification and development actions required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002 & Supp. 2011) are fully satisfied. The Veteran should identify any additional records which may not be currently on file, to include any potential outstanding treatment records from the physician who authored the 2011 positive opinion (if such records do, in fact, exist). If the Veteran identifies records, after the submission of the appropriate waivers, copies must be associated with the claims file.
2. Schedule the Veteran for a comprehensive VA examination, with an examiner other than the ones who conducted the 2006 and 2007 assessments, addressing the nature and etiology of any currently present low back disorder. In this regard, the examiner is to provide an opinion as towhether it is at least as likely as not (50 percent or greater probability) that a current low back disability was by the 1971 fall or, alternatively, whether it was caused or worsened beyond the natural course of the disease process by his service-connected right hip disorder. The examiner must address the positive findings of the private physician in 2011, and a rationale must accompany any conclusion reached in the examination report.
3. Following the directed development, the RO must conduct a de novo review of the claim on the merits. Should the claim not be granted, issue an appropriate statement of the case to the Veteran and his representative and return the claims to the Board for final adjudication.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).
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James L. March
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).